New York's Serious Injury Threshold (2026 Rules)

After a car accident in New York, your own insurance pays your medical bills and part of your lost wages regardless of who caused the crash. That is the no-fault system, and it is capped at $50,000 per person.

What no-fault does not pay is a single dollar for pain and suffering. To recover that from the other driver, your injury has to clear a statutory bar called the serious injury threshold.

This is the gate every New York car accident case has to pass through, and it is the reason two people with identical crashes and identical pain can end up with completely different outcomes. In 2026 the Legislature narrowed it.

The categories that qualify

Insurance Law § 5102(d) defines serious injury as a personal injury resulting in:

Death.
Dismemberment.
Significant disfigurement.
A fracture.
Loss of a fetus.
Permanent loss of use of a body organ, member, function or system.
Permanent consequential limitation of use of a body organ or member.
Significant limitation of use of a body function or system.

Five of those are reasonably self-proving. If a bone is broken, there is an X-ray. The fights are almost always over the last two.

A fracture is a fracture

Worth saying plainly, because people assume a break has to be dramatic to count. The statute says “a fracture” without qualification. A small fracture in a finger or a rib is within the category.

Limitation of use is where cases are won and lost

The two limitation categories are where most soft tissue, disc and shoulder cases live, and they require more than telling a jury that you hurt.

The Court of Appeals has been consistent for decades that objective medical proof is required and that subjective complaints alone are not enough. A limitation has to be established by something measurable — imaging, range of motion testing, a physician’s assessment that has an objective basis and compares your limitation to the normal function of that body part.

It also has to be more than trivial. The courts have held that a minor, mild or slight limitation of use is insignificant within the meaning of the statute. One of the acknowledged purposes of the no-fault scheme is to keep minor injury cases out of court, and judges apply it that way.

Two points in your favor that are often misunderstood:

A doctor does not have to put a percentage on your loss of motion. A qualitative assessment can be enough, so long as it has an objective basis and compares your function to normal.
Your doctor did not have to take numerical measurements at the time of treatment. The Court of Appeals has expressly rejected a rule requiring contemporaneous quantitative measurements, on the sensible ground that treating physicians are not in the business of generating litigation records.

Stopping treatment is the unforced error

If you stop going to therapy, expect the defense to make it the centerpiece. A claimant who ends treatment has to offer some reasonable explanation for doing so, and a gap in treatment, an intervening medical problem or a pre-existing condition can each break the chain between the accident and the injury you are claiming.

“No-fault cut me off” and “I could not afford the co-pays” are real explanations. They just need to be on the record rather than discovered at a deposition three years later.

What the 2026 amendments changed

Three changes took effect on May 26, 2026, and they apply to actions commenced on or after that date.

The 90/180 category is gone

There used to be a ninth category. It covered a medically determined injury or impairment of a non-permanent nature that prevented you from performing substantially all of your usual and customary daily activities for at least 90 of the 180 days after the accident.

That category was struck from the statute. It was the only one defined by how long you were functionally out of action rather than by the nature or degree of the injury, and the only one that expressly reached injuries described as non-permanent. A claim that would have qualified on that basis now has to fit one of the eight categories above.

Note what did not change: “significant limitation of use of a body function or system” does not require permanence on its face, and it is still there.

Fault is now decided first

Section 5104(a) now directs that the trier of fact shall not reach the question of whether an injury is a serious injury until it has determined who was at fault.

That reordering matters more than it sounds, because of the third change.

Being mostly at fault can now end a car accident case outright

New York has long been a pure comparative fault state: your recovery was reduced by your share of the blame but never eliminated by it. That is still the rule for most injury cases.

It is no longer the rule for motor vehicle cases. Under CPLR 1411(b), a claimant in a no-fault motor vehicle case whose share of the fault is greater than the defendant’s — or greater than the defendants’ combined share — recovers nothing.

Put the two changes together and the shape of a car accident case has shifted. Fault gets decided first, and if you come out worse than the other driver on that question, the threshold never gets reached at all. The argument over percentages used to be a haggle over the size of the discount. Now it can be the whole case.

There is also a new cap: § 5104 limits non-economic damages to $100,000 where the injured person was at fault and was driving uninsured, was impaired and convicted, or was committing a felony and convicted. It does not apply where the injury resulted in death.

If your accident was before May 2026

We would rather flag an open question than pretend it is settled.

The amendments are described as applying to actions commenced on or after May 26, 2026. They say nothing about when the accident happened. Read literally, that means a crash from 2024 sued on today could fall under the narrowed definition rather than the one in force when it happened.

The State’s guidance to insurers does not address the point, and we are not aware of a decision resolving it. Anyone sitting on an older accident should treat that as a reason to get advice now rather than assume the old nine categories still protect them.

Who the threshold applies to — and who escapes it

The threshold only governs claims between “covered persons” as the statute defines them. That produces some results people find surprising.

Pedestrians are covered persons. If you were walking and a car hit you, the definition names pedestrians expressly, and you have to meet the threshold like anyone else.

Motorcyclists are not — and this cuts two ways, which is the part that usually gets left out.

The statute defines “motor vehicle” so that it expressly does not include a motorcycle. A rider is therefore not a covered person, is shut out of no-fault benefits, and correspondingly does not have to clear the serious injury threshold to sue for pain and suffering. That is a real advantage for an injured rider, and it is the flip side of having no no-fault coverage for the medical bills.

But § 5104(a) has a second sentence. An insured motorcyclist who is sued by a covered person is not subject to a claim for pain and suffering unless that person meets the threshold. So a driver or pedestrian suing a rider has to clear the bar even though the rider suing them would not.

The threshold has nothing to do with non-vehicle cases. A slip and fall, a construction accident, a dog bite — none of those go through § 5102(d) at all. If someone has told you your fall on a sidewalk has to meet a serious injury threshold, they are confusing two different bodies of law.

The deadline that runs out first

While the threshold decides whether you can sue for pain and suffering, a much shorter clock governs the benefits that pay your bills in the meantime.

Written notice of the claim has to reach the no-fault insurer as soon as reasonably practicable and in no event more than 30 days after the accident. That is the deadline people miss, and it has nothing to do with the three years you have to bring a lawsuit.

Our guide on what to do after a car accident in New York walks through the first steps in order.

Frequently asked questions

What is the serious injury threshold?

It is the statutory bar in Insurance Law § 5102(d) that a car accident injury must clear before you can recover pain and suffering from the other driver. No-fault pays your medical bills and part of your lost wages without regard to the threshold, but it pays nothing for pain and suffering.

Does a broken bone automatically qualify?

A fracture is one of the listed categories, and the statute says “a fracture” without qualifying it by severity. You still have to prove the fracture and that the accident caused it.

I have a herniated disc. Is that a serious injury?

Not by itself. A disc finding on imaging is not a category on the list. It usually has to be tied to a permanent consequential limitation or a significant limitation of use, supported by objective medical proof rather than by your description of the pain.

What happened to the 90/180-day rule?

It was removed from the statute effective May 26, 2026 for actions commenced on or after that date. Claims that would have qualified because the injury kept you from your usual activities for 90 of the 180 days after the accident now have to fit one of the remaining eight categories.

My accident was in 2024. Which version applies to me?

That is genuinely unresolved. The amendments are keyed to when the action is commenced rather than when the accident happened, the State’s guidance does not address older accidents, and we are not aware of a decision settling it. It is a reason to get advice rather than wait.

Does the threshold apply if I was on a motorcycle?

Not to your own claim. The statute’s definition of motor vehicle excludes motorcycles, so a rider is not a covered person and does not have to meet the threshold to sue for pain and suffering. The trade-off is that riders are also excluded from no-fault benefits. Note the reverse: a driver or pedestrian suing an insured motorcyclist does have to meet it.

Can being partly at fault stop me from recovering now?

In a motor vehicle case, yes, if your share is greater than the other driver’s. CPLR 1411(b) bars recovery in that situation for actions commenced on or after May 26, 2026. Most non-vehicle injury cases still follow pure comparative fault, where your percentage reduces the award but does not eliminate it.

Talk to a Staten Island car accident attorney

The threshold is a medical question decided on paper. What your doctor writes down, how consistently you treat, and whether anyone measured anything tend to matter more than how much the injury actually hurt — which is unfair, and is also how these cases are decided.

If you are not sure whether your injury clears the bar, that is worth asking early, while the treatment records are still being created rather than after they stop.

The Law Offices of Frank J. Dito, Jr. represents injured people in New York. Call 718.701.2776 (toll-free: 800.310.5520) or contact us for a free consultation. Consultations are free and there is no fee unless you win.

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